IN THE CASE OF:	  

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140008495 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of:

* Orders 126-374, dated 6 May 2010, to show he was ordered to Full-Time National Guard Duty - Operational Support (FTNGD-OS) for the period 1 May to 30 September 2010 vice 7 May 2010 to 30 September 2010
* his records to show he was entitled to and used 10 days permissive temporary duty (PTDY) vice 10 days ordinary leave in September 2010 (emphasis added)

2.  The applicant also requests:

* payment for the period of 1 May to 15 September 2010 of travel pay, per diem, Family Separation Allowance (FSA), the shipment of household goods (HHG), temporary lodging expense (TLE), and dislocation allowance (DLA)
* his DD Forms 1351-2, dated October 2010, for HHG, TLE, and DLA be processed

3.  The applicant states: 

	a.  His initial orders for May 2010 need to be amended to begin on 1 May 2010 in order to cover his travel time to report for duty.  His DD Form 1351-2 (Travel Voucher or Subvoucher) for travel and per diem pay needs to be processed for the period 1 May to 15 September 2010.  His DD Form 1561 (FSA) needs to be processed for the period 1 May to 15 September 2010.  His DD Forms 1351-2, dated October 2010, for HHG, TLE, and DLA needs to be processed.

	b.  He is also requesting that the Defense Finance and Accounting Service (DFAS) credit him with 10 days leave to reimburse him for the ordinary leave he used due to the California (CA) Counterdrug (CD) Task Force (CDTF), California Army National Guard (CAARNG) refusing to authorize him PTDY in conjunction with his permanent change of station (PCS) move [in September 2010].

	c.  His application was initially returned without action and he was directed to first address his issues with the Adjutant General (AG), CAARNG.  He could do that but it is not normal protocol for an E-8 to submit an issue with orders to an O-8.  He spent 3.5 years submitting his request twice to the Inspector General (IG), CAARNG, and repeatedly to the California CDTF.  The U.S. Property & Fiscal Office (USP&FO), Internal Review, CAARNG, does not understand the Joint Federal Travel Regulation (JFTR) and the relating TDY/PCS entitlements, nor the difference between a separation PCS (which he was paid HHG on) and a station-to-station PCS (which he was entitled to and still has outstanding HHG and TLE/DLA entitlements for).  

	d.  He is attaching the memorandum he submitted to the USP&FO and a list of the issues with references.  With three colonels telling him they will not pay these entitlements, he doesn’t know who else at the CAARNG he could go to.  He is quite exhausted of being strung along by the CAARNG; they owe him a substantial amount of money that he would like to get settled.

4.  The applicant provides:

* two orders, dated 6 May 2010 and 23 September 2010
* an ARNG Inprocessing Checklist, dated 3 May 2010
* three letters and four memoranda, dated between 17 August 2010 and 21 April 2014

CONSIDERATION OF EVIDENCE:

1.  Having had prior active and inactive service, the applicant enlisted in the Regular Army (RA) on 26 October 2006 in the rank/grade of sergeant first class (SFC)/E-7.  He was honorably discharged on 25 October 2009 at Fort Lewis, WA.  Prior to his discharge he enlisted in the Washington ARNG (WAARNG).  

2.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he was transferred to Company A, 1st Special Forces (SF) Battalion (BN), 19th SF Group (SFG), WAARNG, Buckley, WA.  This DD Form 214 also shows his home of record (HOR) as Galt, CA, and his mailing address after separation as Spanaway, WA.   

3.  His record contains:

	a.  Orders 074-025, dated 15 March 2010, issued by Headquarters (HQ), Military Department, WAARNG, wherein he was ordered to active duty for training (ADT) for the period 15 March to 30 April 2010.

	b.  Orders 119-926, dated 29 April 2010, issued by HQ, Military Department, WAARNG, wherein he was released from Detachment 2, Company A, 19th SFG, Fairchild Air Force Base, WA, and transferred to Detachment 1, 19th SFG, Redwood City, CA, effective 29 April 2010, by reason of gained to ARNG of another state.  The date of his loss to the WAARNG was 28 April 2010.

	c.  Orders 126-374, dated 6 May 2010, issued by the Office of the Adjutant General (OAG), CAARNG, wherein he was ordered to FTNGD-OS for assignment with the CA CDTF, Santa Clarita, CA, for the period 7 May to 30 September 2010.  These orders show his unit address as Redwood City, CA, his HOR (at the time of his transfer to the CAARNG) as Redwood City, CA, his reporting date was 7 May 2010, and that he was married with three dependents.

4.  The applicant provides an ARNG Inprocessing Checklist wherein it shows his unit and location as Detachment 1, 19th SFG, Redwood City, CA, and lists the in-processing requirements, in part:

* the approved hiring board memoranda signed on - with the date 7 May 2010 
* substance abuse drug test - with the date 3 May 2003 
* live scan (must be completed within 15 days of new hire) - with the date 3 May 2010

5.  The applicant provides:

	a.  A letter to himself, dated 17 August 2010, from the IG, CAARNG, wherein it stated, in part, regarding amendment to his duty order, initial entry onto the CD Program required favorable background checks and drug screening before the issuance of duty orders.  The screenings and tests were initiated during his in-processing on 3 - 6 August 2010 (i.e., 3 - 6 May 2010).  Because he passed the requirements favorably, his entry into the CD program began on 6 May 2010 (i.e., 7 May 2010). 

	b.  A memorandum, to himself, dated 26 August 2010, from the CAARNG, Joint Task Force (JTF), Domestic Support CD, wherein it stated, in part, the request to backdate his orders to 1 May 2010 was denied.  In accordance with National Guard Regulation (NGR) 500-2 (National Guard CD Support), mandatory screening requirements were not completed until 7 May 2010, the date he was placed on orders. 

6.  The applicant also provides Orders 266-623, dated 23 September 2010, issued by the OAG, CAARNG, wherein he was ordered to FTNGD-OS for assignment to the CA CDTF, Valencia, CA, for the period 1 October 2010 to 30 September 2011.  These orders show his unit address as Redwood City, CA, his reporting date was 1 October 2010, and that he was married with three dependents.

7.  The applicant was promoted to the rank/grade of master sergeant (MSG)/E-8 on 16 December 2012.  He continued to serve on AD as a member of the ARNG. He was honorably released from active duty on 8 December 2013 to the control of the CAARNG.  The DD Form 214 he was issued for this period of service shows he entered active duty on 7 May 2010 and his HOR as Spanaway, WA.

8.  The applicant was ordered to AD as a member of the CAARNG and he entered active duty on 9 December 2013.

9.  In the processing of this case, an advisory opinion, dated 8 December 2014, was received from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  The advisory official recommended partial approval of the applicant's request.  The official stated, in part:

	a.  On 6 May 2010, the applicant received Orders 126-374 with an effective date of 7 May to 30 September 2010 to report to a duty location in Santa Clarita, CA.  He was ineligible for leave reimbursement for two reasons.  During this time, leave had to be cashed out because rollover leave did not occur until Fiscal Year 2012 (FY12) and he was not in an AD status from 1 to 6 May 2010 to use any leave.

	b.  The applicant was serving in the RA from 26 October 2006 to 25 October 2009.  Per his DD Form 214, his HOR (i.e., mailing address after separation) at the time of his release from the RA was Spanaway, WA.

	c.  On 26 October 2009, he enlisted in the WAARNG; based on his NGB Form 23B (ARNG Retirement Points History Statement) his HOR was still Spanaway, WA.  He was on WAARNG FTNGD-OS Orders 067-016 from 9 December 2009 to 14 March 2010.  He was on WAARNG AD for Training (ADT) Orders 074-025 for pre-mobilization training from 15 March to 30 April 2010.

	d.  On 29 April 2010, he was approved for an interstate transfer to a CAARNG unit in Redwood City, CA, and signed an Addendum (Approval and Acceptance by Service Representation for Interstate Transfer in the ARNG) to DD Form 4 (Enlistment/Reenlistment in the ARNG) with an effective date of 1 May 2010 of the transfer.

	e.  The applicant was ineligible for a second PCS claim for payment because he already completed paperwork and was paid for his move from Spanaway, WA, to Santa Clarita, CA.  Therefore, he had no cause to expect the CDTF to pay for his move.  Later an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation, conducted on 10 December 2012, findings indicated the applicant attempted to file a second PCS from Galt, CA, to Santa Clarita, CA.  He was not authorized another PCS payment.

	f.  Based on documentation provided, it appears the applicant would be entitled to receive TDY orders during the period 1 to 6 May 2010 for the purpose of inprocessing at the Headquarters (HQ), CD Task Force, Mather, CA.  This entitlement would benefit him by authorizing him to receive per diem, lodging, and travel pay for the period 1 to 6 May 2010.

	g.  This recommendation was coordinated and reviewed with the NGB AGR Section and the CAARNG CD Executive Officer.  The CAARNG concurred with the recommendation.

10.  On 8 December 2014, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received.

11.  On 31 January 2015, he was released from AD by reason of sufficient service for retirement and he was transferred to the Retired List on 1 February 2015.  

12.  Army Regulation 600-8-10 (Leaves and Passes) provides the requirements and guidance for PTDY.  It states, in part, commanders of units, normally commanded by officers in the rank of lieutenant colonel or higher are authorized to approve PTDY when the period of absence is 10 days or less.  Soldiers may be authorized not more than 10 days for house hunting when the Soldier has PCS orders to travel to the new duty station.

13.  The JFTR states, in part, FSA provides compensation for added expenses incurred because of an enforced family separation under one of the following conditions:

* transportation of dependents is not authorized at government expense and the dependents do not live in the vicinity of the permanent duty station
* transportation of dependents is authorized at government expense but you have elected an unaccompanied tour of duty because a dependent cannot move to the permanent station due to certified medical reasons
* you are on TDY away from the permanent station continuously for more than 30 days and your dependents are not residing at or near the TDY station

14.  NGR 500, paragraph 819 (Personnel Screening) states, in part, selection of personnel for CD duty (in both paid and unpaid statuses) must include screening which provides reasonable certainty that the member is of good character, well-motivated, and an appropriate representative of the National Guard in duties subject to high profile scrutiny by National Guard senior commanders, news media, and the general public.  National Guard members pending disciplinary action, under civilian court orders or awaiting adjudication, or involved in other potentially negative situations will be carefully screened to ensure that they are not assigned in situations where their legal or personal affairs might reflect unfavorably on the CD Program.

15.  A review of Mapquest shows that Valencia, CA, is located 2 miles from Santa Clarita, CA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends:

* Orders 126-374 should be correct to show he was ordered to FTNGD-OS effective 1 May 2010
* he should be paid for travel pay, per diem, FSA, the shipment of HHG, TLE, and DLA for the period 1 May to 15 September 2010
* his DD Forms 1351-2, dated October 2010, for HHG, TLE, and DLA needs to be processed.
* he should be entitled to 10 days PTDY in September 2010

2.  The evidence of record confirms the applicant was issued orders to FTNGD-OS with the CA CDTF, Santa Clarita, CA, with an effective and reporting date of 7 May 2010 and he entered AD on 7 May 2010.  In conjunction with his interstate transfer, he PCSd from Spanaway, WA and arrived to Santa Clarita, CA on or about 1 May 2010.  Notwithstanding the advisory opinion, the applicant provided evidence that shows he inprocessed the CDTF from 3 - 6 May 2010 and the IG letter and CAARNG, JTF memorandum  he provided both stated initial entry into the CD Program required favorable background checks//drug screening before the issuance of AD orders which were accomplished during his inprocessing.  Therefore, he is not entitled to the correction of Orders 126-374, dated 6 May 2010, to show he was ordered to AD effective 1 May 2010.

3.  With respect to his request for travel pay, per diem, FSA, the shipment of HHG, TLE, and DLA for 1 May to 15 September 2010, the advisory official stated he was not entitled to a PCS move to the CDTF because he was paid for his PCS move from Spanaway, WA, to Santa Clarita, CA.  The Army Board for Correction of Military Records is not an investigative body and can only decide cases on the evidence of record or evidence provided by an applicant.  In the absence of evidence to the contrary, it is presumed he would already been paid for his travel time and other expenses incurred with this PCS.  In addition, he has not provided any evidence that shows where his family members were residing, that he would be entitled to FSA during this period, or what vouchers he previously submitted, and what entitlements he has already been paid for.  Therefore, there is insufficient evidence to grant him this portion of the requested relief.

4.  With respect to his request for his October 2010 DA Forms 1351-2 for HHG, TLE, and DLA to be processed, it is unclear why a move of 2 miles would require the relocation of HHG and entitlement to TLE and DLA.  The applicant has not provided any evidence that shows what vouchers he previously submitted, what entitlements he has already been paid for, or the reasons his DA Forms 1351-2 were not processed for his relocation in October 2010.  Therefore, there is insufficient evidence to grant him this portion of the requested relief.

5.  With respect to his request for 10 days PTDY for his move from Santa Clarita, CA, to Valencia, CA, a distance of 2 miles, PTDY is not an automatic entitlement. He has not provided any evidence that shows he was unfairly denied this request by his unit.  It is unclear why a move of 2 miles would require the need to use PTDY for house hunting.  Therefore, he is not entitled to this portion of the requested relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  __x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20140008495





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ABCMR Record of Proceedings (cont)                                         AR20140008495



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